Madhya Pradesh High Court Dismisses Father's Habeas Corpus Plea For Custody Of Minor Child, Suggests Alternate Remedy U/S 13 Of CPC

The Madhya Pradesh High Court in its Gwalior Bench dismissed a habeas corpus petition filed by a father based in USA, seeking the custody of his minor son.

The Bench comprising of Justice Anand Pathak & Justice Rajendra Kumar Vani deliberated on whether an order passed by the Foreign Court directing the mother to produce the child before it would render the custody of the minor unlawful.

The court stated that the petitioner has an alternate remedy in form of section 13 & 14 of the CPC but has to satisfy its requirements.

“The petitioner has alternative remedy as per different provisions of CPC including Section 44A and Sections 13 and 14 of CPC and if required and if law permits, may proceed under Guardians and Wards Act, 1890. While doing so, petitioner has to satisfy the exceptions carved out in Section 13 of CPC.”

The petitioner in the present case has sought directions from the court through a petition filed under Article 226 to produce the petitioner's son before the court and to return his son to USA, as sole custody vests with him based on the order from New Jersey's Chancery Division Court order dated 4^th April 2023. In 2018, the mother, i.e., the Respondent returned to India with the child due to a marital discord and resided in Sehore, Madhya Pradesh.

The petitioner relied upon the judgment of Apex Court in the case of Yashita Sahu Vs. State of Rajasthan (2020), Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad (2019) and contended that based on interest of child and scope of writ of Habeas Corpus the petition is maintainable and deserves consideration. The Respondent argued that alternative remedy enshrined under CPC is available to the petitioner.

The high court examined the scope of habeas corpus in matters of child custody and referred to various supreme court judgements like Nithya Anand Raghavan v. State NCT of Delhi, 2017, which held that the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court.

The writ petition was disposed of, but the court did acknowledge the petitioner's efforts to keep in contact with his child and suggested that he may request the mother and at her discretion, the meeting, whether in person or online, shall be arranged.

“Despite the fact that petitioner is making efforts to meet his child, legal provisions and judgments as referred above do not come to his rescue. Thus, the petition fails. However, looking to the nature of dispute and the fact that petitioner being a father, may request respondent No.2 to meet his son and if she feels so, it is her discretion to permit for meeting personally or on video call. That is an expectation raised by the Court and not issuing any command to comply. It is purely between the couple and for respondent No.2 to decide.”

Case title: VISHNU GUPTA Vs. STATE OF MADHYA PRADESH AND OTHERS

Case No: WRIT PETITION NO. 10746 of 2024

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